McBeth v. Porges et al
| Donald F. McBeth |
| Gregory L. Porges, Spectra Opportunities Fund LLC, Spectra Financial Group LLC and Spectra Investment Group LLC |
| 1:2015cv02742 |
| April 8, 2015 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Jesse M. Furman |
| Other Contract |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
215
OPINION AND ORDER re 178 MOTION in Limine , 186 MOTION to Preclude Expert Testimony of Aaron Young and Sander Gerber, 189 MOTION in Limine , AND 200 MOTION for Leave to File Fourth Amended Complain t : For the reasons set forth within, McBeth's motion for leave to file a Fourth Amended Complaint is DENIED; Defendants' motion in limine is GRANTED in part and DENIED in part; McBeth's motion in limine is GRANTED in part and DENIED in part; and McBeth's separate motion to exclude expert testimony, including his request for a Daubert hearing, is DENIED. Additionally, as described above, the parties are ORDERED to submit, no later than November 21, 2018: (1) joi nt proposed jury instructions; (2) a joint proposed verdict sheet; and (3) from each party, a statement of the damages claimed. Additionally, the parties are granted leave to file, by the same date, letter briefs, not to exceed five pages each, ad dressing any outstanding damages issues. (By the same date, Defendants may respond, in a letter brief not to exceed three pages, to McBeth's argument regarding the relevance of certain paragraphs in the TAC to his non-dismissed claims.) The Clerk of Court is directed to terminate Docket Nos. 178, 186, 189, and 200. (Signed by Judge Jesse M. Furman on 11/15/2018) (ab)
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Filing
183
MEMORANDUM OPINION AND ORDER re: 160 MOTION to Dismiss Counterclaim filed by Donald F. McBeth. For the foregoing reasons, McBeth's motion to dismiss the Counterclaim is DENIED. The Clerk of Court is directed to terminate Docket No. 160. (Signed by Judge Jesse M. Furman on 8/8/2018) (mro)
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Filing
33
OPINION AND ORDER re: 19 MOTION to Dismiss the Second Amended Complaint filed by Spectra Opportunities Fund LLC, Spectra Investment Group LLC, Gregory L. Porges, Spectra Financial Group LLC: For the reasons stated above, Defen dants' motion to dismiss is GRANTED in part and DENIED in part, and Plaintiff's claims are dismissed except for his breach-of-contract and breach-of-fiduciary-duty claims and his corresponding alter-ego claims against Porges. One questio n remains: whether McBeth should be permitted to amend his complaint again, as he requests in a single sentence at the end of his memorandum of law in opposition to Defendants' motion. (Pl.'s Opp'n 25). Under Rule 15 of the Federal Rules of Civil Procedure, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The Second Circuit has held that a Rule 15(a) motion - as the Court construes Plaintiff request - "should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the o pposing party." Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005) (internal quotation marks omitted); see also Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) ("lea v[ing] unaltered" prior case law on denial of leave to amend, including the rule that "leave may be denied where amendment would be futile"). Nevertheless, "the grant or denial of an opportunity to amend is within the discretio n of the District Court." Williams v. Citigroup Inc., 659 F.3d 208, 214 (2d Cir. 2011) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Applying those principles here, leave to amend is not warranted because further amendment would be fut ile. The Court has dismissed the misrepresentation, unjust enrichment, and promissory estoppel claims, as well as any breach-of-contract claim premised on a theory of looting. In brief, the misrepresentation claim fails because of the non-re liance provisions written into the Offering Papers themselves; the unjust enrichment claim fails because it is duplicative of Plaintiff's breach-of-contract claims; and the promissory estoppel claim fails because Plaintiff has not suffered a legally cognizable injury from his alleged reliance. New or different allegations would not change those facts; that is, the problem with the claims "is substantive [and] better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 9 9, 112 (2d Cir. 2000). The fact that Plaintiff already amended his complaint in an attempt to cure the deficiencies raised in Defendants' initial motion to dismiss - a motion that, notably, was substantially identical to the motion addresse d in this Opinion and Order (see Docket No. 15) - underscores the futility of further amendment. See, e.g., Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (affirming the district court's denial of leave to amend in part because of the previous opportunities that the plaintiff had received to amend the complaint). Additionally, Plaintiff was explicitly cautioned that he "w[ould] not be given any further opportunity to amend the complaint to address issues raised by the motion to dismiss." (Docket No. 17). Claims that were not addressed in Defendants' initial motion to dismiss could call for a different result. As Defendants note, one of the principal amendments to Plaintiff's complaint was its add itional emphasis on the claim that Defendants might have looted the Fund's assets. (Defs.' Mem. 10-11; see also First Am. Compl. (Docket No. 8) paragraphs 73-80 (showing that breach of contract theories did not include misappropriation). Because that claim was arguably not addressed directly in Defendants' initial motion and because the Court dismissed it under Rule 9(b), leave to amend would ordinarily be warranted. See Official Publ'ns, Inc. v. Kable News Co., 884 F.2 d 664, 669 (2d Cir. 1989) (noting that "where [a] complaint is deficient under Rule 9(b), leave to amend is usually afforded" (internal quotation marks omitted)). But, here, Plaintiff fails to give "any indication that he is in poss ession of facts that would cure the problem[]" identified, Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014); in fact, he has repeatedly conceded that he "does not know precisely how his investment was lost" (SAC paragraph 36; see also id. paragraph 62; Pl.'s Opp'n 1 ("What McBeth does not know is precisely how the Defendants squandered or misappropriated his money.")), and even states that, "[p]rior to discovery,&q uot; his theories of how the Fund went bust are "mere conjecture." (Pl.'s Opp'n 14). As the Federal Rules of Civil Procedure do "not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions&quo t; or speculation, Iqbal, 556 U.S. at 678-79, and Plaintiff himself concedes that he is not in possession of facts to meet the relevant pleading standard, amendment of the looting allegation would also be futile. The Clerk of Court is directed to terminate Docket No. 19. (Signed by Judge Jesse M. Furman on 3/21/2016) (tn)
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